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PUBLIC HEALTH LAW AND ETHICSKAREN GALLINARI, ESQ.
CLASS STRUCTURE AND ASSIGNMENTS
▪ Offered generally Spring Semester
▪ 13 three hour evening classes (15 minute break)
▪ Discussion of Reading assignment
▪ Discussion of current public health issues
▪ Guest speakers
▪ Textbook and Supplemental reading
▪ Rotate responsibility for leading discussion in teams of 3
▪ Annotate related power point slides
▪ Select a current public health issue to follow and brief our class
▪ Exam or Final paper options
▪ Teams permitted, provided each student’s primary section is clear
▪ Publication ready!
Class 1
2CLASS WORKING DRAFT
POPULATION PERSPECTIVE
▪ Focus shifts from:▪ individual to population and ▪ treatment to prevention
▪ Populations▪ Geographic▪ Employees▪ Ethnic▪ Other characteristics: disabled, prisoners, children etc.
▪ Producing and Measuring Outcomes
▪ Reducing disparities and inequalities among subgroups
▪ Partnerships and coalitions▪ Governments▪ Private Class 4
3CLASS WORKING DRAFT
LETTER TO GOVERNOR CUOMO
March 26, 2020
Re: COVID-19 New York Public Health Emergency
and
Disaster Conditions:
Call for Essential Crisis Standards in New York
NYS Bar Association Health Law Section
CLASS WORKING DRAFT 4
THE DOMAIN AND BOUNDARIES OF PUBLIC HEALTH
▪ Infectious Disease
▪ Prevention recognized as governments’ responsibility since as early as 600 BC
▪ Government expected to promote and protect health, safety and welfare
▪ State Police Powers
▪ When health is at issue, the rights of individuals are subordinate to rights of the public
Class 1
5CLASS WORKING DRAFT
THE DOMAIN AND BOUNDARIES OF PUBLIC HEALTH
Law of Necessity
▪ Example, Small Pox Epidemic
▪ 1905 Jacobson v. Massachusetts (US Sup Ct)▪ Held Mass. Statute requiring small pox vaccination was not unconstitutional
▪ “[T]he liberty secured by the Constitution…does not import an absolute right in each person to be, at all times….wholly free from restraint.”
▪ 1919 Globe School Dist. V. Bd of Health (Sup Ct Ariz)▪ School district unable to prevent health dept’s school closure Spanish flu
epidemic
▪ 1995, NYC Friends of Ferrets v. NYC DOH▪ Dismissed complt against prohibition of keeping ferrets Class 1
Class 1
CLASS WORKING DRAFT 6
THE DOMAIN AND BOUNDARIES OF PUBLIC HEALTH
▪ Limitations on Police Power
▪ Rights granted to federal government
▪ Civil and private rights of citizens
▪ Equal protection
▪ Freedom of religion
▪ Freedom to contract
Class 1
CLASS WORKING DRAFT 7
21ST CENTURY LEGAL AND ETHICAL ISSUES
▪ Difficult trade offs
▪ Lancet 2002
▪ Utilitarianism, liberalism and communitarianism
▪ Right choice, most gain?, largest reduction in burden of disease?
▪ Immanuel Kant, individual respect as an end in itself versus community good
▪ Childress, 2002
▪ Instit. Of Med. 1988 Defintion of Public Health:
“…what we do…collectively…to assure..people can be healthy.”
▪ Effectiveness. Proportionality, necessity, justification, accountability
8CLASS WORKING DRAFT
GLOBAL PUBLIC HEALTH EMERGENCIES
▪ No express federal public health powers
▪ Public health sovereignty resides with the states
▪ US Constitution assigns national security to the federal government
▪ Public health threats to national security include bioterrorism and infectious disease
▪ Federal statutory authority
▪ Public Health Service Act
▪ Robert T. Stafford Disaster Relief and Emergency Assistance Act
▪ Federal Emergency Management Agency (FEMA)
▪ Dept. of Homeland Security
▪ National Emergencies Act
▪ International Health Regulations, World Health Organization Class 3
9CLASS WORKING DRAFT
GLOBAL PUBLIC HEALTH EMERGENCIES
▪ Public health tools▪ Isolation and Quarantine
▪ Social distancing
▪ Risk communication and burial
▪ Travel restrictions
▪ Health care settings and obligation of health workers
▪ SARS
▪ Ebola
▪ COVID-19
▪ Moral considerations▪ Equality
Class 3
10CLASS WORKING DRAFT
DETERMINANTS OF HEALTH
▪ Types of Determinants
▪ Biological
▪ Physical / Environmental
▪ Behavioral
▪ Social
Class 4
▪ Class 4 11CLASS WORKING DRAFT
DETERMINANTS OF HEALTH
▪ Motor vehicle injuries▪ Bonnie and Guyer, Injury as Field of Public Health
▪ Graham, Injuries from Traffic crashes
▪ Seatbelts
▪ Blood alcohol level and cannibus
▪ Cardiovascular disease▪ Blood pressure
▪ Cholesterol
▪ Diabetes
▪ Smoking
▪ Weight
▪ Exercise
▪ Marketing
▪ Education Class 4
12CLASS WORKING DRAFT
POPULATION STRATEGIES ▪ New York City
▪ HIV/AIDS
▪ Diabetes▪ Frieden on rate in people of color
▪ 2002, Mayor Bloomberg’s controversial strategies▪ Trans fat ban, calorie labeling salt reduction▪ Lawrence Gostin: “urban innovator or meddling nanny”
▪ NYC Bd of Health▪ Part of NYC Dept of Health and Mental Hygiene▪ Commissioner, Chairperson and 9 members appointed by the Mayor
▪ Fairchild on NY’s Soda Rule Class 5
13CLASS WORKING DRAFT
PATERNALISM CONSTRAINT
▪ Helmet laws
▪ Callahan, Legislating Safety
▪ Tobacco Control▪ IOM, Ending tobacco problem
▪ Strong measures▪ Social disapproval▪ Discrimination against smokers, justified?
▪ Freedom and Paternalism in the workplace▪ Length of work day and work week▪ Minimum wages▪ Safe work place
Class 5
14CLASS WORKING DRAFT
GOVERNMENT RESPONSIBILITYAUTHORITY AND THE CHALLENGE OF FEDERALISM
▪ Patient Protection and Affordable Care Act of 2010(“ACA”)
▪ Increased access for millions▪ Preventive initiatives
▪ Presents opportunities to overcome barriers to eliminating health disparities
▪ After the ACA
▪ Incentivizing better outcomes▪ Health versus treating disease
15CLASS WORKING DRAFT
ACA IMPACTRECENTLY IN THE NEWS
▪ NY Times, Tuesday, Dec. 10, 2019*
▪ Economists published study finding health coverage reduce number of deaths
▪ 3 years ago, 3.9 million fined by IRS for not having health insurance
▪ Notices of fines increased insurance sign-ups
▪ Due to budget constraints, random 600,000 uninsured were not sent the letter (randomized control group)
▪ 12 percent fewer deaths over 2 years among insured (700 lives saved)
*Sarah Kliff, The IRS Sent a Letter to 3.9 Million People. It Saved Some of Their Lives
Class 7
16CLASS WORKING DRAFT
COMMUNICATION AND PERSUASION
▪ Constitutional constraints on government speech
▪ Ethical constraints▪ Liberty enhancing v. manipulative, coercive or insulting
▪ Persuasion
▪ Influenced by the merits▪ Threatens autonomy?▪ Manipulative?▪ Inadvertent harm?▪ Vunerability?
17CLASS WORKING DRAFT
LABELING AND ADVERTISING
▪ Commercial speech about products that may be harmful generally not protected by First Amendment
▪ Mandated disclosures
▪ NYS Resturant Ass’n v. NYC Bd of Health, 2009
▪ Court found reasonable relationship between calorie count regulation and goal to reduce obesity
▪ Tobacco advertising
Class 13
18CLASS WORKING DRAFT
PUBLIC HEALTH OPPORTUNITIES
▪ NYS Bar Association Health Law Section, Public Health Committee
▪ NYC Bar Association, Bioethics Issues Committee
▪ Join the Network for Public Health
▪ https://www.networkforphl.org/join_the_network/
Class 1
CLASS WORKING DRAFT 19
EMPLOYMENT IN PUBLIC HEALTH
▪ Government positions
▪ City
▪ State
▪ Federal
▪ Health Care Providers
▪ Law Firms
▪ Communications
▪ Human Resources
CLASS WORKING DRAFT 20